* Jeannie Suk, The Trouble with Teaching Rape Law. I've noticed something very similar in my classes, where I have a short segment on questions of consent and how rape law might be improved -- every year students get less inclined to participate in discussion of the subject, to such an extent that I am considering replacing it entirely. Every year it gets harder for them to talk about the subject at all, even at the level of considering ways the legal system might handle it better. And the irony is that we are living in an age when I occasionally have to point out to students that talking about their sex lives in essays or to me is not completely appropriate. It says something about us that in our society it is easier to talk about sex than about justice in sexual matters.

Tuesday, December 30, 2014

A friend stands at the door;
In either tight-closed hand
Hiding rich gifts, three hundred and three score:
Waiting to strew them daily o'er the land
Even as seed the sower.
Each drops he, treads it in and passes by:
It cannot be made fruitful till it die.

O good New Year, we clasp
This warm shut hand of thine,
Loosing forever, with half sigh, half gasp,
That which from ours falls like dead fingers' twine:
Ay, whether fierce its grasp
Has been, or gentle, having been, we know
That it was blessed: let the Old Year go.

O New Year, teach us faith!
The road of life is hard:
When our feet bleed and scourging winds us scathe,
Point thou to Him whose visage was more marred
Than any man's: who saith
"Make straight paths for your feet" — and to the opprest --
"Come ye to Me, and I will give you rest."

Yet hang some lamp-like hope
Above this unknown way,
Kind year, to give our spirits freer scope
And our hands strength to work while it is day.
But if that way must slope
Tombward, O bring before our fading eyes
The lamp of life, the Hope that never dies.

Comfort our souls with love, — Love of all human kind;
Love special, close — in which like sheltered dove
Each weary heart its own safe nest may find;
And love that turns above
Adoringly; contented to resign
All loves, if need be, for the Love Divine.

Friend, come thou like a friend,
And whether bright thy face,
Or dim with clouds we cannot comprehend,—
We 'll hold out patient hands, each in his place,
And trust thee to the end.
Knowing thou leadest onwards to those spheres
Where there are neither days nor months nor years.

I like the conceit of days as seeds, unable to be fruitful until they die. I know almost nothing about Craik except that she was best known in her day as a novelist. But glancing through her early short story collection, Avillion and Other Tales (that's just volume 1), it looked very interesting, as did her fantasy novel (as we would call it today), Alice Learmont. I have about a jillion things to do at the moment, but I'll have to add them to the list.

The paradigm case of coercion could be said to be when a robber stops you and says, ‘Your money or your life’. Coercion involves the restriction of freedom (reduction of options), which causes that person to do what she does not want to do. Coercion is wrong when it harms a person or fails to respect that person's autonomy. That is a conceptual analysis of coercion.

Even professionals working in bioethics (which includes medical ethics), including Leon Kass, misuse this term. Embryos cannot be coerced since they are not persons and lack freedom of will. But more importantly, future people cannot be coerced by the act of genetic selection or cloning. Imagine that IVF produces two embryos, Anne and Bob. The parents choose Bob because that embryo has perfect pitch (or is a clone). Later in life, can Bob complain that his parents coerced or limited his freedom by selecting him on the basis of having perfect pitch (or being a clone)? No—he owes his very existence (all his options and freedom) to their act of selection. Without assisted reproduction and selection (or cloning), he would not have existed. It is metaphysical fact that those who owe their existence to a reproductive act cannot be coerced by that act. Even more broadly, they cannot be harmed by that act unless it makes their existence so bad that their lives are not worth living.

This is an awful conceptual analysis, one that seems to ignore almost all philosophical work that has ever been done on the topic. The problems start right at the beginning. A paradigm case is supposed to be a relatively simple and straightforward example, so that it can serve as a general reference point for other things; it needs to have relatively few atypical features. But threats of any kind are not relatively simple and straightforward; while people generally recognize that some kinds of threats can sometimes be coercion, determining why and in what way threats are coercive has never been easy, because they necessarily bring in issues of emotional possibility and social expectation. Virtually all the obvious candidates for paradigm cases of coercion are physical: someone seizing you and physically making you do something, someone holding your nose to force something down your throat, etc. Even the simplest cases of threat (e.g., dangling someone off the side of a building and threatening to drop them if they don't tell you something) are more complicated than such cases, with all sorts of distinctive and atypical features.

The point would perhaps not bear pointing out, since paradigm cases are only important as reference points, were it not for the obvious thing that is not in Savulescu's analysis at all: the reason why physical cases of coercion are better candidates for paradigm cases than emotional cases is that they are more blatant examples of use of force. To get emotional cases in requires looking at how and in what way one person can be said to force someone else to do something simply by threatening, which brings in the psychological and sociological questions. (This is the only reason historically, for instance, that we take threat to be coercion and not something different even if related: people argued that certain kinds of threat were as much a case of forcing someone as physical forcing.) Savulescu's analysis is missing any conception of forcing at all, a fact that is glossed over by his choice of paradigm case. The analysis itself is so general that it doesn't require any force at all. Do you know how I can reduce your options in such a way as to cause you to do what you don't want to do? By doing just about anything at all, in the right circumstances. If I insult someone in whose good graces you'd prefer to stay, this might cause you to apologize to them on my behalf even if you don't want to do so. And if you claimed I coerced you, I would say (in a candidate paradigm case of rejecting coercion as an explanation), "Nobody forced you to do it." The vast majority of our actions reduce the options of other people; that's why coordination in the form of society is often necessary. The number of ways in which our actions can cause someone to do something that they don't want to do is truly legion, and very few of them involve anything that most people would recognize as coercive. And note in particular that Savulescu doesn't give any way of connecting how the reduction of options relates to the causing. If I reduce your options so that you still have several options left, but you stupidly think it leaves you only one option, in what way did I actually coerce you? Yet it fits Savulescu's account of coercion.

It's possible that Savulescu is assuming something like Nozick's account of coercion, which does take coercion to be primarily threat-based; but this is not a "conceptual analysis of coercion" but a substantive and highly controvertible position on the subject. Nor does this do anything to alleviate the obvious problem of overgenerality.

The issue of harm and failure to respect as implying wrongness of coercion can be allowed to pass, although they are not part of a "conceptual analysis" of coercion, but points of substantive dispute. The next serious problem, though, is that there is no particular reason to think that Savulescu's analysis is complete -- either with respect to the analysis of coercion itself (we've seen that there are positive reasons to think it is not) or with respect to what makes coercion wrong. There is nothing wrong an incomplete conceptual analysis, except that Savulescu immediately goes on to treat it as complete, using it as a criterion for proper use and misuse of the term. But as long as it is incomplete, it cannot be ruled out that there are nuances that shift the border between appropriate use and misuse in ways that may not be obvious. (To take a simple example: Suppose someone gives 'killing a person' as a conceptual analysis for murder and then immediately starts criticizing other people for misusing the term. Is it not immediately obvious that, since the conceptual analysis is incomplete, treating it as complete will guarantee that the person gets the question, 'Is this a correct or incorrect use of the term 'murder'?", wrong in any number of cases?)

What is more, Savulescu's argument ends up not being consistent with taking his conceptual analysis as complete. Savulescu says, "future people cannot be coerced by the act of genetic selection or cloning", but nothing in his analysis implies this. The conceptual analysis gives two, and only two, conditions for something being coercion:

(1) It reduces someone's options.
(2) It causes them to do what they don't want to do.

Both of these can be met in the genetic selection cases. Certainly anyone's genetics might at some point in their lives cause them to do something they don't want to do; go to the hospital, perhaps. And there are perfectly straightforward senses in which your genetics can reduce your options. My genetics means that I don't have the option of doing things that require excellent vision. The only way Savulescu can get 'future persons' into the analysis at all is by reading (1) in a very, very particular way, one that is not at all obvious from his analysis, and is not at all an obvious candidate for how it should be read: it has to mean that coercion is reduction of the options that already existed (rather than normal options, or minimal acceptable options, or what have you). By that account, slave owners who arranged for slave babies were not coercing the slaves who grew up from those babies, because there was never a point at which the slaves in question had any option not to be slaves -- that option was ruled out from the beginning. This is not what anyone would have taken to be the obvious reading of condition (1), nor is it consistent either with our usual usage or the history of the term. If one doesn't take this extremely counterintuitive reading, neither (1) nor (2) rules out the possibility that someone can be coerced by means of the very act by which they are generated, nor do they imply that future people cannot be coerced by genetic selection or cloning.

I have no idea in what sense Savulescu's last sentence is supposed to be taken 'more broadly'; as his conceptual analysis of coercion states things, considerations of harm are not 'more broad' than considerations of coercion, merely overlapping. But even here Savulescu's claim is baffling: 'making someone's existence bad' is something we usually talk about in terms of harm, so it's an utter mystery how one would go about making someone's existence bad and yet not be harming them because you didn't make their existence so bad that life itself was no longer worth living. That's certainly not what anyone would usually say; it doesn't fit any of our paradigm cases of harm. And it doesn't follow from the conceptual analysis of coercion, since the conceptual analysis you would need is a conceptual analysis of harm, which we aren't given.

The same problems pervade the article. For instance, Savulescu says,

Concerns about coercion equally fail to apply to many acts of germline genetic enhancement. Engineering perfect pitch or increasing intelligence or giving a child a talent increases options and freedom. Coercion in such cases only exists if parents choose to then limit options.

But this doesn't follow from the conceptual analysis, either, which did not make any claims that the reduction of options had to be overall, rather than any sort of reduction of options. And it is quite obvious that one may simultaneously reduce options so that someone does what he or she doesn't want to do, while also increasing other kinds of options. Indeed, this happens in all sorts of coercive cases. A peasant who is kidnapped and forcibly made a eunuch to a king may have all sorts of options opened that did not exist before -- eunuchs have historically had all sorts of lines of power opened to them, so that someone might well have more options as a eunuch than as a peasant. But nobody would look at any of these to determine whether the eunuch in this instance had been coerced in the first place. Nobody thinks that it is relevant to the question of whether Ottoman Turks coerced young people into becoming Janissaries that the Janissaries then for all practical purposes ruled the Empire. If I torture you, or threaten you, or blackmail you into doing something that leaves you more free in the end, it's not obvious that the latter implies that I did not coerce you at all; and it is certainly not something that follows from Savulescu's conceptual analysis. There is a clear illegitimate shift here: the analysis considers only reduction of options, without telling us anything about how opening options would be factored in, and Savulescu in his example considers only opening of options, without considering the ways in which it would reduce options. There's no excuse of this, either; the people Savulescu is criticizing would certainly be focusing on the latter.

What's more, the whole thing begins to be quite comic. Savulescu by the end of the article has complained that (1) professionals working in bioethics and medical ethics often do not use the term in the way his conceptual analysis would require; (2) professionals working in law often do not use the term in the way his conceptual analysis would require; and (3) in everyday life, in matters where they have to deal with problems in medical ethics, people very often do not use the term in the way his conceptual analysis would require. Which shows that he does not quite grasp what a conceptual analysis does: it analyzes the concepts people use by beginning with how they use it and seeing what that requires about the concept itself; and while people may use concepts confusedly or inconsistently, a proper conceptual analysis will be able to explain why they would be confused. (Nor can Savulescu claim to be doing conceptual analysis in some other, weird way; he explicitly appealed to a paradigm example, and that is the whole point of a paradigm example in conceptual analysis: typical use.) The evidence is not sufficient to determine the analysis, but it is essential for doing it. Savulescu's conceptual analysis not only is defective in itself, it apparently floats free from almost all actual evidence about the concept. If your conceptual analysis cannot explain how almost everyone except yourself uses the term in question, you have not actually analyzed the concept that you are claiming to analyze.

Savulescu admittedly insists that he is not giving a full defense; but he does presuppose throughout his entire argument that this is a good, even if not best, analysis. But this is one of the worst conceptual analyses I've ever seen, and certainly the worst I've ever seen published in a professional journal. You could give a bright undergraduate the article and they could point out obvious problems with it. And a bad conceptual analysis doesn't establish what he claims -- "good philosophy—which may well include good counter—arguments to all my philosophical arguments in this paper—is essential to understanding and deciding bioethical issues—and law". I do in fact agree with this claim, at least. But Savulescu fails miserably at showing it. His conceptual analysis being a mess, it doesn't show that conceptual analyses would do any more than sow confusion. And his argument is not appropriately structured, even if his conceptual analysis were any good, for showing that it is "essential" to understanding and deciding bioethical issues and law, rather than say, merely occasionally a useful supplement. Indeed, nothing Savulescu says establishes any relevance to law at all; for all he shows, the 'conceptual confusions' he identifies that get involved in law might well just be necessary evils given all the many things law has to balance. There seems to be a rather large contingent of bioethicists who do not seem to grasp the elementary point that law, as a practical discipline, often has to operationalize, approximate, and rig up extrinsic qualifications and restrictions to work in the first place. Going around pointing out 'conceptual confusions' in the law is an idiot's game; the question is how one would eliminate them in law while still meeting all the goals that must be met by the law -- and that is sometimes very, very far from an idiot's game.

That's all I have to say about that, although the thing that Savulescu says in the article that had me hit my head on the desk -- literally, and I do mean literally -- was this:

David Hume famously described this ‘fact–value’ or ‘is–ought’ distinction. One of his greatest contributions to ethics was to observe that values cannot be read straight off natural facts. To do so is what GE Moore described as the naturalistic fallacy. Science and ethics are completely different kinds of enterprises.

Full discussion of this would take another long post. But setting aside the fact that 'fact-value' and 'is-ought' are not the same distinction, Hume manifestly does not think that "values cannot be read straight off natural facts"; he's a moral sentimentalist, which means that he thinks moral matters concern facts about moral feelings of approval and disapproval, which are natural facts (just not necessarily natural facts, depending on how the phrase is used, about the thing approved or disapproved). To put it in terms other than Hume's own, he's a naturalist about ethics. To claim that science and ethics are completely different kinds of enterprises on the basis of Hume's discussion of the way in which ethics can be part of the Science of Man is completely wrong, and there hasn't been much excuse for such a use of Hume in decades. I wasn't even born yet when people were pointing out that this sort of thing is a caricature of Hume, and not even a very good one. Alas, I fear that I will be pointing out that it is a caricature of Hume on my deathbed, be it many decades down the road.

Monday, December 29, 2014

Today is the Feast of St. Thomas Becket. Thomas was appointed Lord Chancellor to Henry II in 1155. He turned out to be an extraordinarily savvy administrator, increasing the king's revenue considerably. As a result, Henry pulled a few strings to help get him the position of Archbishop of Canterbury, the highest prelacy in the kingdom. (He had to be ordained a priest the day before he was ordained bishop, although he was already a deacon.) Almost certainly Henry expected Thomas to continue to be in the royal pocket, but Thomas turned out to take his position as Archbishop just as seriously as he had taken his position as Lord Chancellor. He became an ascetic, and zealously began to extend the influence of his office.

Things came to a crisis over the question of legal jurisdiction. Court and Church had different legal systems at that time. If a cleric murders someone, however, in which court should he be tried. The two courts worked in fairly similar ways, but there were important differences -- for instance, ecclesiastical courts did not have the death penalty. Henry wanted all such crimes tried in royal courts, Thomas insisted that they be tried in ecclesiastical courts. Henry was willing to accept a compromise in which the accused would first be tried in an ecclesiastical court, then, if found guilty, be defrocked and tried in the secular court; but Thomas did not regard this as as even remotely acceptable, and insisted that the accused could not be tried twice for the same crime.

Henry began actively pulling strings again, trying to get the bishops to agree to a sharply curtailed system of ecclesiastical privileges. Only Becket held out, and he was eventually forced to flee to France. Pope Alexander III began to intervene, and through his legates negotiated a compromise that allowed Becket to return in 1170.

Becket's stay on the continent seems to have done nothing to restrain his insistence on maintaining the rights and privileges of the Church; the issues changed, but his attitude did not. What follows next is somewhat obscure. The usual story is that Henry happened to say something -- the exact thing said varies from story to story -- that was taken by some of his knights as a hint to bring Thomas in. So four knights went to Canterbury and demanded that Thomas come with them to Winchester to answer for his actions. He refused, and they went back outside to get their swords, and killed him in the cathedral on December 29. We have eyewitness accounts of the murder.

Alexander III canonized him in 1173, which is very short period for canonization. But he was a martyr, which simplifies the canonization process, and as word spread, so did his veneration. He was originally buried in the crypt, but he was moved to a special shrine in 1220. That shrine stood until 1538, when Henry VIII, in the process of stealing all of the Catholic Church in England, specifically ordered the shrine destroyed (and possibly had his bones burned), and also had all mention of his name eliminated from the Cathedral and made it illegal to celebrate his feast day. No doubt he was a little uncomfortable at the thought of England's most famous pilgrimage site being devoted to a saint martyred for insisting to a King Henry that the Church had rights and privileges the king could not infringe.

Chaucer's Canterbury Tales, of course, is about a pilgrimage to Becket's shrine. Both Tennyson's Becket and T. S. Eliot's Murder in the Cathedral are about Becket's murder.

From Tennyson's Becket:

DE MORVILLE. Why, then you are a dead man; flee!

BECKET. I will not.
I am readier to be slain, than thou to slay.
Hugh, I know well thou hast but half a heart
To bathe this sacred pavement with my blood.
God pardon thee and these, but God's full curse
Shatter you all to pieces if ye harm
One of my flock!

"I don't know that calm and unbiassed men are always the best judges," said Father Ashley. "No doubt bias is a bad thing, but I think that apathy is worse. If your unprejudiced men are apathetic, if their minds and hearts are in things other than religion, I had rather have a 'prejudiced man who is in earnest, and whose heart is in the matter. If I were a prisoner, I had rather my judge were somewhat prejudiced against me, than that he had neither bias nor sense of responsibility. The former kind of judge, if he is conscientious, has something in him to which one can appeal, and which may overcome his prejudice; the latter may condemn me through mere sleepiness or inattentiveness. You may reason away prejudice, but not apathy, as its very characteristic is that it takes no pains to attend to your reasonings."

Wilfrid Philip Ward, "The Wish to Believe," in Witnesses to the Unseen, and Other Essays, p. 171.

Sunday, December 28, 2014

The First Folio edition of William Shakespeare's plays, published in 1623, divided its thirty-six plays into three groups: comedies, histories, and tragedies. Ten plays are found in the category of 'histories', of which eight are concerned with the Wars of the Roses. While I'll be reading all ten, it is the latter that is the primary draw; I've been wanting to read the plays of the Wars of the Roses cycle all together for some months now.

The plays are:

(1) King John: John ruled from 1199 to 1216; he was the son of Henry II and Eleanor of Aquitaine, and the father of Henry III. He came to the throne after the death of his brother, Richard I Coeur de Lion. He faced some rather significant problems in his reign, which he did not handle entirely successfully, and the play is mostly about the internal dissensions he faced, and the need of the English people to be united. The structure of the story is based almost entirely on a previous anonymous play, The Troublesome Raigne of King John, which was published in 1591 and has occasionally also been attributed to Shakespeare.

***Wars of the Roses***

(2) King Richard the Second: Richard II ruled from 1377 to 1399; he was the younger son of Edward, the Black Prince, and he succeeded his grandfather, Edward III, at the age of ten. Since the play depicts the deposition of Richard II, which led to Henry IV taking the throne, it was somewhat controversial in its day; scholars since have tended to see the play as suggesting that the deposition started the chain of events leading to the Wars of the Roses, which is perhaps a little free with the history but a rather less subversive interpretation.

(3) The First Part of King Henry IV: Henry IV, cousin to Richard II, ruled from 1399 to 1413. The play was famous from the beginning for its comedy, most notably in the person of Falstaff, Prince Hal's drinking companion. The story depicts the period in which Henry Percy (Hotspur) rebels against Henry IV, although we also get something of Prince Hal's own rebelliousness.

(4) The Second Part of King Henry IV: The tale follows Prince Hal and his relation to Falstaff as Prince Hal has to come to reject his dissolute ways and become a man worthy of being king.

(5) King Henry V: Prince Hal ascends the throne and rules as King Henry V from 1413 to 1422. The play, which focuses on the Battle of Agincourt (1415) serves as a sort of pinnacle to the War of the Roses cycle, portraying a definite political success.

(6) The First Part of King Henry VI: With Henry VI, who ruled England from 1422 to 1461 and from 1470 to 1471, we begin to get the Wars of the Roses themselves, as the House of Lancaster begins to struggle against the rising House of York. That England's fortunes, so apparently bright under Henry V, are beginning to turn is seen in the fact that Joan of Arc (la Pucelle) is a character in this play: the French under the Valois dynasty are about to make sudden and massive gains against the English and their Burgundian allies, although Joan will eventually be captured. An uneasy and unstable peace settles by the end, on the verge of Henry IV's marriage to Margaret of Anjou.

(7) The Second Part of King Henry VI: Henry VI marries Margaret of Anjou and the two, who are something of an ill-suited match, become caught up in the struggle between Gloucester and Suffolk; the Wars of the Roses begin and the play ends with Henry VI in flight from the House of York. It is usually considered the strongest of the Henry VI plays.

(8) The Third Part of King Henry VI: Beginning where 2 Henry VI leaves off, this play covers the destruction of the kingdom and the corruption of its houses through the Wars of the Roses. It ends with Henry VI having been cast off his throne a second time and depicts Richard, brother of King Edward IV of the House of York, as his assassin.

(9) King Richard III: The death of King Edward IV brings Richard to the throne as Richard III, who ruled England from 1483 to 1485. The basic story that Shakespeare is working with goes back to Sir Thomas More, since both of the major sources used by Shakespeare for his historical background, Edward Hall's The Union of the Two Noble and Illustre Families of Lancaster and York (1548) and Raphael Holinshed's Chronicles of England, Scotland and Ireland (1577) draw on More's History of King Richard III -- good dramatic ground to build on, since More presents Richard III as extraordinarily manipulative, able to push and pull people as he will even when they see clearly that he is doing it, yet simultaneously blind to the clear signs that he is pushing events toward his own destruction. The play ends with Richard's defeat at the Battle of Bosworth Field. It is Shakespeare's second longest play (after Hamlet) and is usually performed in an abridged version because it presupposes familiarity with the Henry VI plays.

*******

(10) King Henry VIII: Henry VIII ruled from 1509 to 1547. It ends with the christening of Princess Elizabeth, the future Queen Elizabeth. It is very free with the order of events and avoids any direct criticism of Henry, although it is usually thought to have been first written and performed after Elizabeth's death. It is often thought to be a collaborative work with John Fletcher.

As I mentioned before, my primary interest is to read the Wars of the Roses cycle, from Richard to Richard by way of the Henries, but I'll read the other two as well. The edition I am using is the Heritage Press (New York) edition of 1958, introduced by Peter Alexander with woodcut illustrations by John Farleigh; it is the second volume of the three volume set of Shakespeare's plays. While I've read all the plays before at some point or another, this volume has seen less reading than the other two, except for Henry V, which is my favorite Shakespearean play. You see a picture of it online, with the title page and some of the woodcuts, although my copy is in much better shape. Alas, I seem to be missing the Sandglass for it, so I don't have further details about binding or type, or at least, any details that could be regarded as remotely accurate. But the whole work is 986 pages, not counting the glossary in back, so that's quite a bit of historical drama to get through in two weeks.

Friday, December 26, 2014

Prudence is an interesting virtue in that it is inherently communicable: significant aspects of human life would not even be possible if we were not able to participate, at least in principle, in the prudence of others. The obvious example of this is parenting, since parenting is nothing other than sharing one's prudence (or as close to it as one happens to have) with one's children, who are, of course, still in the process of developing their own. Good parenting, of course, is when one genuinely shares the genuine virtue of prudence; to the extent that parenting falls away from that ideal, it is either because the parent doesn't actually have the virtue of prudence (although, children being rather more durable than some people seem to think, one can usually make do as long as one is not actually foolish, i.e., anti-prudent) or because something goes wrong with the sharing. The most general form of prudence-sharing, though, is not parenting but advising, prudence being the virtue not just of good decision but also of good advice.

Aquinas identifies a number of quasi-integral parts of prudence -- these are sub-virtues that together yield prudence, and when you develop prudence it is by developing these quasi-integral parts. Because prudence is also the virtue of good advice or counsel, however, all the quasi-integral parts of prudence are relevant to good advice, and we can see in the quasi-integral parts of prudence a basic template for assessing the quality of advice, which might roughly go something like this, at first approximation:

Integral Part of Prudence

Relevant Feature of Good Advice

memory

based on experience

understanding

consistent with fundamental principles

teachableness (docilitas)

consistent with other probably good advice

eustochia

connects ideas in a plausible way (internal consistency and plausibility)

Thursday, December 25, 2014

This is the festival of the virgin birth! Our address must be exalted therefore in accordance with the greatness of the feast, and enter into the mystery, as far as this is accessible and permissible, and time allows, that something of its inner power might be revealed even to us. Please strive, brethren, to lift up your minds as well, that they may better perceive the light of divine knowledge, as though brightly illumined by a holy star. For today I see equality of honour between heaven and earth, and a way up for all those below to things above, matching the condescension of those on high. However great the heaven of heavens may be, or the upper waters which form a roof over the celestial regions, or any heavenly place, state or order, they are no more marvellous or honourable than the cave, the manger, the water sprinkled on the infant and His swaddling clothes. For nothing done by God from the beginning of time was more beneficial to all or more divine than Christ's nativity, which we celebrate today.

Wednesday, December 24, 2014

Aristotle's Nicomachean Ethics appears to be, like most of Aristotle's extant works, a set of lecture notes. The reason for the title is not entirely clear; the usual suggestions are that either Aristotle edited the notes and dedicated the work to his son Nicomachus, or Nicomachus is the one who edited the notes. The work is closely connected to Aristotle's Politics, and, indeed, it is important to understand that Aristotle's conception of 'ethics' is in some ways narrower than our usual conception of it: 'ethics' concerns the customary behavior of the civilized, that is, of the citizen actively occupying his proper place in his city. For instance, Aristotle's virtues (courage, temperance, liberality, munificence, and the like) are concerned with the character of a civilized person, and are always explained in those terms.

The Nicomachean Ethics is one of three major works in Aristotle's ethics, the other two being the Eudemian Ethics and the Magna Moralia. NE and EE are both generally recognized as authentic, while the authenticity of MM is disputed. EE shares three chapters in common with NE (EE chapter IV, V, and VI are identical to NE chapters V, VI, and VII); otherwise the relation among the works is quite unclear.

Aristotle is often said to use an aporetic method, and his discussion of friendship is an excellent case in point. In an aporetic method, one begins with what is apparently true, based on common beliefs, the authority of wise and informed people, and the like. As one examines the apparent truths, however, puzzles (aporia) arise -- things that do not fit together properly. We then find a resolution to these puzzles that not only makes them fit together properly, but also, when common opinions turn out to be wrong, explains how these wrong opinions could have become common. We see this in Aristotle's discussion of friendship.

He starts with noting the common opinions and practices that indicate that friendship is important.

Then he notes some points of inconsistency and dispute in what people commonly believe about friendsihp.

He then analyzes friendship itself as way to begin to clarify these points of dispute: both what friendship seems to require, and what kinds of friendships there are. This enables him to start resolving some of the disputes.

Recognizing the features and kinds of friendship, however, raises additional puzzles, which he also begins to solve.

The result is not a discussion with simple organization, but it does end up being a very substantive and quite thorough discussion of the essential character of friendship; it is unsurprising that it has been one of the most influential discussions in Western philosophy.

Kinds of Friendship

Aristotle begins by noting a number of reasons why friendship is worthy of our attention: it is virtue or pertinent to virtue, it is necessary for genuine human life, and it is kalos (beautiful/fine/noble/splendid). There are a number of puzzles about friendship, however. One very obvious one is that some people say that friendship is based on similarity or likeness ('birds of a feather'), while others say that it is based on difference. In order to settle this question, Aristotle sets aside the common way most Greek philosophers tried to handle it, by identifying underlying cosmic principles, and suggests that one focus on actual human passions and character. If we focus on this, we get a number of key questions that we will want answered: What kinds of people make friends with each other, and what kinds of friendship are there?

To start this kind of classification, Aristotle looks at what it is for something to be lovable. Why do people love things? Some things are loved as good in themselves, and others as pleasant or useful. Not all kinds of love are friendship; you can love inanimate things, for instance, but this kind of love differs from what we take to be friendship because if you love wine (for instance), you don't wish good things for wine, whereas we do have this kind of goodwill for a friend. In addition, love of the inanimate is not mutual, but the goodwill in friendship is mutual and conscious. Given this, we can recognize that friendship, the kind of love involving conscious mutual goodwill, falls into three classes: friendships of excellence (virtue), friendships of use, and friendships of pleasure. Some people we love as friends because they are useful for us; others because they are pleasant to be with; and others because they are good in themselves. Aristotle thinks that older people are especially prone to form utility-friendships, and young people are especially prone to form pleasure-friendships; both of these kinds of friendships, however, are incidental and highly changeable. Virtue-friendships, on the other hand, are not incidental or easily changed, because the kind of goodwill involved with them is one in which you wish good for someone for their own sake, and not because they happen to be enjoyable or beneficial to you. They are also fully mutual, since both friends want fundamental goods for each other, and the degree to which friendships are mutual seems to have a significant effect on how durable the friendship itself is. Virtue-friendships are relatively rare, though; bad people cannot form them, and even good people have to work to cultivate them.

In general we tend to think of friendships as being among equals, but certain kinds of friendship among unequals are possible: father to son, elder to youth, and so forth. These by nature cannot be perfectly mutual, although, they can be made enduring if the two consistently fulfill their roles in a proportionate way. In all such cases, and, indeed, in friendship generally, the primary activity of the friendship is loving rather than being loved.

Friendship, Community, and Dispute

The two major things establishing a community (koinonia) are justice and friendship. Both of them have to do with common good, and while they are distinct, they do tend to support and require each other in various ways in the making of communities. This includes political or civil communities. Legislators tend to emphasize friendship, particularly utility-friendship, even more than justice. Because of this we can think of civic friendship in terms of the different kind of political systems: monarchy, aristocracy, polity, and their unjust counterparts, tyranny, oligarchy, and democracy. (Even in non-political communities, like families, there are analogues to these constitutions.) For obvious reasons, unjust constitutions sharply limit the capacity of the community for civic friendship.

Of the three kinds of friendship, utility-friendships are the ones most likely to break down into accusation and recrimination. Virtue-friendships are unlikely to do so because they involve love for persons themselves; even if one friend fails another, it will be recognized as accidental, and incidental to the friendship itself. Pleasure-friendships are unlikely to break down in this way because we tend not to accuse and reproach people merely for not pleasant enough, since we generally only spend as much time with pleasure-friends as pleases us. Utility-friendships, however, are protected from recrimination by neither of these: we are use-friends with those from whom we expect benefits, and there are any number of ways for us not to be getting the benefits that we think we should be getting. Like pleasure-friendships, utility-friendships can be very changeable, but we tend to be more entangled with them than we are with pleasure-friendships. Some utility-friendships, for instance, are contractual. Others are more matters of honor. In both cases, the change of the friendships requires definite consent on both sides. Pleasure-friends can just drift away from each other if things change; utility-friends generally cannot, and are likely to get disputatious and resentful if the friendship changes on them. While Aristotle doesn't elaborate much on the political ramifications of this, that it does have political ramifications is clear enough, since the primary structures of political communities as such are all utility-friendships. He does, however, explicitly note that it has bearing on who receives honor and recognition in a community.

Tuesday, December 23, 2014

When Christianity says that God loves man, it means that God loves man: not that He has some "disinterested," because really indifferent, concern for our welfare, but that, in awful and surprising truth, we are the objects of His love. You asked for a loving God: you have one. The great spirit you so lightly invoked, the "lord of terrible aspect," is present: not a senile benevolence that drowsily wishes you to be happy in your own way, not the cold philanthropy of a conscientious magistrate, nor the care of a host who feels responsible for the comfort of his guests, but the consuming fire Himself, the Love that made the worlds, persistent as an artist's love for his work and despotic as a man's love for a dog, provident and venerable as a father's love for a child, jealous, inexorable, exacting as love between the sexes.

C. S. Lewis, The Problem of Pain, Collier (New York: 1962) pp. 46-47. "Lord of terrible aspect" comes from Dante, of course, in La Vita Nuova. Dorothy Sayers reflects on the same idea in the chapter on the love of the creature in Mind of the Maker.

Saturday, December 20, 2014

I went and saw The Hobbit: The Battle of Five Armies yesterday, and have been thinking since of what I might say about it. I don't really have anything extensive to say, but here are some assorted thoughts.

(1) It is massively better than the second movie. They wrapped up the fan fiction material (Bard's family, Tauriel the Largely Useless Romantic Interest, Alfred the Snivelly, and Azog the Defiler -- there really is a remarkable amount of it) somewhat better than I expected. Martin Freeman crying over Thorin, and the dwarves paying their final respects, would in itself cover many sins, and I heard people sniffling all over the theater at that point. As with the previous ones, the acting is actually fairly good, even with the badly written made-up parts.

(2) There are two ways in which they certainly should have gone with the books. (Always important to remember that, despite the name, these movies are not The Hobbit but prequels to the Lord of the Rings movies.) First, Fili and Kili. The book is very, very clear: Fili and Kili do not survive because they die defending Thorin Oakenshield "with shield and body". Fili's death is entirely wasted here, and while they do OK with Kili's death, in no way is it better than the death he has in the book.

Second, the assault on Dol Guldur, while mildly interesting, is very low-key when it should have been rather impressive. Why in the world the White Council would assault the Necromancer on their own when two of them have direct command of formidable Elven troops with literally millenia of experience in fighting dark forces is beyond me. And what is more, the books, brief as they are about it, are clear enough that Saruman used siege engines against the Necromancer, and that his war machinery was a major factor in the White Council's success. It was not only disappointing in itself that this was dropped, but it was a missed opportunity: As a prequel to the Lord of the Rings movies, what really needed to be shown was how terrible a military foe Saruman can be.

(3) There are some points where they probably should have gone with the book, but did OK with their different direction. The death of Kili was one -- it worked out fine as they did it, but there was really no particular reason to do it the way they did it. The dragon-sickness issue ended working well; it was a bit overplayed, but they were at least smart enough to realize that, if they were going to put this sort of emphasis on it, they should at least point out explicitly that Bilbo is resistant to this sort of domination of mind. The changes made in Thorin's death did not make it better, but due to some excellent acting and reasonable balance, they did not make it worse, which would have ruined the trilogy in and of itself. I wasn't hugely impressed with how they handled one of the most memorable lines of the book -- "The Eagles are coming!" -- but at least it wasn't badly botched. Bard doesn't strike me as very like his book counterpart, but he actually ends up being a very good character.

There was one change they made that was very, very good -- the acorn, which made the point that needed to be made, clearly, quietly, simply, and did so effectively enough that the theme of home was emphasized despite all of the many things going on.

(4) Rather curiously, most of the outright mistakes were special effects failures. Who in their right mind would ever have thought that the negative was a good effect for Galadriel? It was stupid in the LOTR movies and it was just as awful here. Some of the special effects for Thorin's mental state could have been done without. The earth-eaters were, I think, a less impressive effect than they were hoping.

Pacing has been a problem throughout; the pacing is much better here, but it seems clear that some of the things at the beginning of the movie should have been in the previous movie.

One of the other outright mistakes was the Elves leaping over the Dwarves in battle, which is such an extraordinarily, jaw-droppingly stupid tactical move that it would have made more sense if it were done with Radagast's rabbits than with Elves who have been fighting orcs for centuries. And it was right after one of the really great moves. Jackson does not actually handle battle scenes very well -- one recalls the often awful handling of the battle in front of Minas Tirith -- but the Dwarves phalanxing and forming a shield wall was genuinely good and awesome. The moment was ripe for the Elves to flank the orcs, crushing them between the two armies. Instead the Elves decided to crush themselves between the Dwarves and the Orcs and force the Dwarves to break their tactically excellent line, all in order to have a fake-awesome moment.

This has, indeed, been a running problem with Peter Jackson: the inability to tell the difference between awesome and fake-awesome.

(5) Some things I liked: the acting, as I mentioned, was good all around. I liked the acorn scene. I liked how much of the stuff to do with Laketown, and its uncertain future after Smaug's attack, was handled. As with the other movies, sometimes the little details are excellent. And it did fairly well overall as the final act in the prequel series to Jackson's LOTR movies. Some of the jokes were reasonably good in this one.

(6) There are two ways in which this movie can be evaluated: relative to the books and solely qua movie. Is this a great adaptation of the book? No, although, again, this is the best and least flabby of the three, and massively better than the second. That's unfortunate, in many ways. There was so much potential that was squandered, and there's really very little chance of another serious attempt for a good thirty years. There have in the three movies been three episodes, however, that were very much worth seeing on the screen: Bilbo and Gollum in the riddle game in the first one, the unfortunately brief bit of Bilbo rescuing the Dwarves from the dungeons of the Elf-King (at least when they are actually still in the dungeons), and Bilbo at the death of Thorin here. All of them are reasonably well done.

I think it fares much better if we ask, "If we forget that this movie is adapting Tolkien, sometimes well but often badly, and just consider whether it stands up as a movie, how well does it do?" I think this third offering stands up fairly well by such a standard; it actually ends up being more coherent than a lot of movies these days, and it has a better message and deeper feel than most big-effects movies ever do. The acting saves an immense amount. Martin Freeman, again, is excellent. Richard Armitage did brilliantly with a somewhat oddly written character path. It does most of the movie-prequel things quite well. I was worried about the score in the beginning, but overall it turned out quite well. And one thing that may not come out in any of what I've said above is that the emotional balance of the movie is for the most part quite good -- we get genuinely funny, genuinely sad, genuinely heartfelt, genuinely silly, and so forth in about the right proportions for a movie this length, so that it actually does well on one common standard against which movies are measured: unlike the previous film, it did not drag, and it stayed interesting.

Opening Passage: The opening passage of 1 Maccabees does a good job in laying the groundwork for them all.

After Alexander son of Philip, the Macedonian, who came from the land of Kittim, had defeated Darius, king of the Persians and the Medes, he succeeded him as king. (He had previously become king of Greece.) He fought many battles, conquered strongholds, and put to death the kings of the earth. He advanced to the ends of the earth, and plundered many nations. When the earth became quiet before him, he was exalted, and his heart was lifted up. He gathered a very strong army and ruled over countries, nations, and princes, and they became tributary to him. After this he fell sick and perceived that he was dying. So he summoned his most honored officers, who had been brought up with him from youth, and divided his kingdom among them while he was still alive. And after Alexander had reigned twelve years, he died. Then his officers began to rule, each in his own place. They all put on crowns after his death, and so did their sons after them for many years; and they caused many evils on the earth. From them came forth a sinful root, Antiochus Epiphanes, son of Antiochus the king; he had been a hostage in Rome. He began to reign in the one hundred and thirty-seventh year of the kingdom of the Greeks. In those days lawless men came forth from Israel, and misled many, saying, "Let us go and make a covenant with the Gentiles round about us, for since we separated from them many evils have come upon us."

Summary: We can think about the differences between the four Maccabean books in part by seeing them as taking four different approaches to history, which we might call political, theological, legendary, and philosophical, each of which has an important place in how we understand history.

1 Maccabees is closest to what we would usually think of as a historical work, because what we tend to think of as historical objectivity is primarily a sort of political sobriety in partisan matters. There is some evidence of occasional reordering of events for narrative convenience, the numbers are usually not conservative estimates, and the author is not afraid to make an evaluation, but in most matters it is a very restrained narrative. There are clear heroes and villains in the narrative, but the assessment of each is balanced and restrained, because the author is giving an account of the rise of the Hasmonean dynasty that recognizes some of its political and moral weaknesses as well as the heroism that made it possible in the first place.

The author only refers to God indirectly. He will occasionally use the word Heaven (ouranos) when he has to for narrative purposes, but usually he will only allude to God by a brief Scriptural reference, or, on occasion, will intimate God's work by a narrative juxtaposition. It would be a mistake, however, to think of it as a purely or even mostly secular narrative; the author's devotion infuses the entire work. The time of the Maccabees is a time without prophets (9:27), but memory of the prophets is fundamental to their society (9:54) and the return of prophets is anticipated (4:46). The time is for practical work and restoration, with the restoration of the Temple as the central pillar of this work. The Jewish people have to find a way both to survive and to remain who they are. If you are attacked on the sabbath, do you defend yourself? What do you do with Hellenizing Jews who are collaborating with the enemy and are systematically persecuting those who remain faithful to Hebrew ways? I think this is in a great measure the reason why the author is unapologetic about the Maccabean ways of doing things: everything, absolutely everything, is a life-and-death decision. If they make a mistake, evaluating it has to take into account the context, in which Jewish life is being systematically destroyed on several fronts. If they rise to the occasion, they are true heroes and moral exemplars. And either way, they are preserving their people and fortifying them against the forces that would destroy them.

2 Maccabees presents itself as an epitome of a larger work by Jason of Cyrene, and explicitly states its basic approach to history:

All this, which has been set forth by Jason of Cyrene in five volumes, we shall attempt to condense into a single book. For considering the flood of numbers involved and the difficulty there is for those who wish to enter upon the narratives of history because of the mass of material, we have aimed to please those who wish to read, to make it easy for those who are inclined to memorize, and to profit all readers. For us who have undertaken the toil of abbreviating, it is no light matter but calls for sweat and loss of sleep, just as it is not easy for one who prepares a banquet and seeks the benefit of others. However, to secure the gratitude of many we will gladly endure the uncomfortable toil, leaving the responsibility for exact details to the compiler, while devoting our effort to arriving at the outlines of the condensation. For as the master builder of a new house must be concerned with the whole construction, while the one who undertakes its painting and decoration has to consider only what is suitable for its adornment, such in my judgment is the case with us. It is the duty of the original historian to occupy the ground and to discuss matters from every side and to take trouble with details, but the one who recasts the narrative should be allowed to strive for brevity of expression and to forego exhaustive treatment.

And at the end of the book he notes that a readable style has been one of his primary goals.

The book is not a mere popularization, though, since it is utterly uninterested in the Hasmonean dynasty itself, and throughout has a clear and well-developed theme: the Sovereignty of God. The question put to the Jews in the Maccabean era is precisely one of sovereignty, and the author holds that those who went after Greek ways and sought Greek prestige failed to recognize that God was their true sovereign. The Maccabean martyrs, and later Judah Maccabee, succeed entirely because they recognize God as sovereign in authority. And sovereignty is connected with another theme in the book, that of the future resurrection of the dead, which is, as it were, the chief expression of divine sovereignty; acceptance of it is essential to proper recognition of the divine authority, and what really divides the Hellenizers from the Hebrews, and the Gentiles from the Hebrews, is that the latter recognize it and act according to it. This is the underlying idea of what is perhaps the most famous passage of the book (12:41-45), in which Judah Maccabee prays for the dead and makes atonement for them. He does it because he recognizes that the resurrection of the dead is not just an abstract thesis but a practical dividing line now between those who recognize the sovereignty of God and those who refuse to recognize it, or else only give it lip service; what makes it a "holy and pious thought" is that its very character is a recognition of God's absolute sovereignty. The entire book is a reflection on the nature of divine providence.

3 Maccabees is a boisterous tale of a different persecution in Egypt. It is storytelling, plain and simple. Bits and pieces of the tale seem to go back to historical events, but the author is relating folk legends, not rigorous history, and seems to delight in the craziness of the whole story. Ptolemy Philopator happens to win a few battles that bring Jerusalem with in his sphere of control, and he visits to see the sights. The sight he really wants to see is the Holy of Holies in the Jewish temple, but for obvious reasons the Jews are not wholly amenable to this kind of tourism. When he attempts to enter despite their insistence that he not do it, they pray to God, who humiliates the king by beating the king around with a whirlwind. The king is savvy enough to realize that he had better desist, but, humiliated, he goes back home hatching plans to humiliate and destroy the Jews -- branding them with the sign of Dionysus, taxing them, eliminating their rights as citizens and killing those who object, while dangling the lure of full citizenship if they will only join in the Alexandrian mysteries. While some people give in to the temptation, the king finds that the Jews are largely unmoved by this complex program; carrot and stick are just not enough. The Jews go out of their way to make clear that they are still loyal to the king, but they refuse to give up their Jewish ways, and are even getting some sympathetic help and protection from a few of the Greeks of the city, who, however, are not numerous enough to do more than help here and there at the individual level.

In order to destroy the Jews entirely, the king orders a census taken of all the Jews in the kingdom. This proceeds apace until the scribes come to him and tell him that they have run out of paper -- in Egypt, in which writing materials literally grow like reeds along the river! So he changes his plans, summoning Hermon, his keeper of elephants, so that the Jews can be executed by being gathered en masse in one place and then killed by five hundred intoxicated elephants. (A point which shows that one should be careful in thinking one knows what's what when dealing with folk legends; this might seem such a crazy detail that it must be made up, but there is some evidence that the kings in Egypt did occasionally execute groups by intoxicating elephants, although nothing on the scale we find here.) At this point, however, God starts playing with the king's mind. First He sends such a deep sleep on him that oversleeps and thus never manages actually to give the order to kill the Jews until the intoxication has worn off and everything has to be set up again. Then there is a hilarious sequence in which the king orders Hermon to kill the Jews, and Hermon eagerly sets everything up, and then the king suffers temporary amnesia in which he is horrified at what Hermon is doing, and threatens to kill Hermon instead for trying to murder loyal citizens. (The scene is delightfully underplayed: "So Hermon suffered an unexpected and dangerous threat, and his eyes wavered and his face fell.") Everything is dismantled. Then the king's memory returns and he is furious that his original order wasn't carried out, leaving his nobles in complete confusion and thinking that the king is going totally crazy. Finally everything gets underway, and the Jews are being killed in the hippodrome by intoxicated elephants, and God sends angels to oppose the king, who backs down and orders all the nobles to apologize to the Jews and throw them a big banquet in reparation.

I've spent some time on the story of 3 Maccabees because I think the book doesn't get the appreciation it deserves. It has often been dismissed as a mere collection of uncritically accepted legends. But the author's use of wild legend and over-the-top rhetoric and imagery, besides making for an entertaining story, allow him to do something he would not otherwise be able to do: give a sort of representative picture of Gentile-Jewish relations. I think this is a probable way in which the king's whiplash changes of mind is to be read: the history of the Jews really is something like this, in which Gentiles rampaging and out for Jewish blood is suddenly alternated by Gentiles praising Jews and rewarding them for their loyalty, without much rhyme or reason, and without the Jews themselves ever really changing or doing anything new. And it has to be said that the craziness of the king of Egypt's plan for eliminating the Jews is not less insane than some of the anti-Jewish plans that real governments have really tried to put into effect. Folk legends about historical events are not about accuracy of details but about the sense of the people, and the author does a good job of using them to capture a sense of being a Jew in a world dominated by unpredictable Gentiles. As such it conveys the key message that, whatever the persecution may be, one should remain hopeful, because the world always swerves. And the details, again, are often entertaining. Perhaps it's just living in the Bureaucratic Age, but I find there to be something almost perfect about a government setting out to destroy a people and getting tripped up in its plans because it runs out of office supplies.

4 Maccabees I've talked a bit about before; it is a philosophical reflection on the Maccabean martyrs mentioned in 2 Maccabees, arguing on the basis of their stories that reason is capable of ruling the passions and that life according to the Jewish law is a training in the virtues of prudence, justice, fortitude, and temperance. In the course of doing this, it also argues that "those who die for the sake of God live to God" (16:25) and that those who put them to death receive eternal torments. In addition, it suggests in several ways that the martyrs are examples for everyone, even those not martyred, and that the blood of the martyrs atones for the sins of the people.

Favorite Passage: From 3 Maccabees:

But at these words he was filled with an overpowering wrath, because by the providence of God his whole mind had been deranged in regard to these matters; and with a threatening look he said, "Were your parents or children present, I would have prepared them to be a rich feast for the savage beasts instead of the Jews, who give me no ground for complaint and have exhibited to an extraordinary degree a full and firm loyalty to my ancestors. In fact you would have been deprived of life instead of these, were it not for an affection arising from our nurture in common and your usefulness." So Hermon suffered an unexpected and dangerous threat, and his eyes wavered and his face fell. The king's friends one by one sullenly slipped away and dismissed the assembled people, each to his own occupation. Then the Jews, upon hearing what the king had said, praised the manifest Lord God, King of kings, since this also was his aid which they had received. The king, however, reconvened the party in the same manner and urged the guests to return to their celebrating. After summoning Hermon he said in a threatening tone, "How many times, you poor wretch, must I give you orders about these things? Equip the elephants now once more for the destruction of the Jews tomorrow!" But the officials who were at table with him, wondering at his instability of mind, remonstrated as follows: "O king, how long will you try us, as though we are idiots, ordering now for a third time that they be destroyed, and again revoking your decree in the matter? As a result the city is in a tumult because of its expectation; it is crowded with masses of people, and also in constant danger of being plundered."

Now, I wonder whether that actually hits the target, since (as is admitted) a big part of the question is not whether the currently-accepted definition of “person” is correctly applied, but whether the definition is the right one in the first place. Pointing to the way the term has and is applied won’t answer that. Indeed, the ruling seems to take pains to avoid answering that part of the deposition. If Smith says that the law is inadequate, Jones can’t demonstrate its adequacy simply by reciting it.

As I noted in remarking on the NhRP press release, this gets the structure of the decision wrong in the first place. But even if we set this aside, this remark makes no sense. It is not Jones's place or responsibility, when a matter of law comes up, to "demonstrate its adequacy", if Jones is a judge deciding a case. A judge can demonstrate the adequacy or inadequacy of law to more fundamental laws, but there is no court system in the world in which they are tasked with demonstrating the adequacy of laws, simply speaking. What is more, a judge cannot simply ignore how a law fits into the overall legal regime; that's one of the things a judge is supposed to do. It matters whether there is precedent; and it matters how much of a change to the entire legal regime a particular kind of decision would require. These always need at least to be assessed, even though precedent alone is not necessarily definitive in itself (as the decision itself explicitly points out). And if one wishes to change the legal regime itself, the appropriate route is to work with the legislature to do so (as the decision also explicitly points out). One of my continual complaints about the way bioethics is often done is that it tends to ignore actual relevant context, and Brassington's comment here is a an excellent example.

(2)A judicial decision is not the forum for a general consideration of rights as such, but only for a consideration of rights as available under law. Brassington says:

Part of the reasoning is in tune with the dogma that you can’t have rights unless you also have responsibilities. I’ve never seen a particularly good defence of this dogma. I can see how one might have rights, and I can see how one might have responsibilities, but I’m unsure how the former depends on the latter.

The reasoning, however, has nothing to do with "the dogma that you can't have rights unless you also have responsibilities"; it simply notes that our legal regime does, in fact, link rights to in-principle participation in the responsibilities of society. What is more, we aren't in this particular case dealing with all rights in general; we are dealing with remedy rights like the writ of habeas corpus, which is in fact historically a right that is linked with the responsibilities of those subject to the law (the root idea of it being that a court can bring a person to court for whatever purposes the court is capable of having, even if the person is detained; and historically the right has primarily been upheld as a procedural protection for citizens). Even if one held that the general principle of the correlation of rights and responsibilities failed, it does not follow that it fails for rights based on legal personhood, which are, as the court notes, generally treated as linked to the in-principle capacity for social responsibility.

Likewise, contrary to what Brassington says, the application of the principle doesn't give us "a problem when it comes to young humans"; the status is (a) presumptive and (b) determined by legal regime -- you don't have to prove that you are capable of social responsibility in order to be a legal person, you just have to be the kind of entity taken to have that legal status in the overall legal regime. This can be because one literally does have the ability for social responsibility, or merely because one is deemed for convenience of law to have it, even if that is a fiction. But this is a status conferred by the legal regime as a whole. And, as the decision notes, there is simply no question here about whether our legal regime takes chimpanzees to have the relevant status -- it doesn't. There isn't even any ambiguity or inconsistency about it, as there has occasionally been with human beings; everyone recognizes that giving chimpanzees the legal status of personhood would be a significant change in how our society handles that legal status. Young humans do not represent any such change at all; our legal regime is very clear that infants are to be deemed legal persons, so there is no doubt at all about them, and is inconsistent on whether the unborn are to be deemed legal persons, so it can tip either way depending on how one assesses the overall system of law.

(3) Judicial cases give the burden of proof to those who would change the status quo. Brassington does recognize that in principle one can take the rights and responsibilities here as stipulative. But he goes on to say:

For one thing, even if all right-holders are duty-holders, it doesn’t follow that all duty-holders are right-holders. (In just the same way, even if all squares are rectangles, it doesn’t follow that all rectangles are squares.) So if slaves did have rights after all, there seems to be something else going on – and if it can be going on in respect of slaves, then why not in respect of chimps? At the very least, that something else would have to be quite carefully defined.

But, first of all, this is not how the relation of rights and responsibilities are generally conceived; if someone has a genuine duty, one does have the rights required for the performance of the duty. What is more, the writ of habeas corpus has historically had a very close connection with precisely this way of relating rights and duties: one of the reasons it is seen as protecting subjects and citizens is that it means that others cannot arbitrarily prevent them from fulfilling their overall legal and judicial responsibilities without having an acceptable reason that justifies it.

But again Brassington drops the judicial context. In a judicial context it does not "have to be quite carefully defined" what the relation between rights and duties is; judges are not philosophers of law or moral philosophers, considering regimes in the abstract in a rigorous way; nor are they legislators determining the basic principles of a particular regime on broader principles; they are practical decision-makers handling particular cases in light of how the actual legal regime operates. It is not the responsibility of the court to carefully define every important issue that comes up, or even most issues that come up; if someone wishes to establish in court that the way things are done practically is inconsistent or unacceptable, it is they who need to establish it, and they need to do so in a way that has relevance to the court's actual authority to the practical requirements of the case at hand. A court can indeed address these sorts of problems -- if they come up in a way that the court can do something about and in a matter in which it is important for the practical issue at hand. It is not, however, either the court's general responsibility or general right even to show how or whether the way things are legally done makes sense.

(4) A remedy under law depends on the general way law works. Brassington says:

So I’m inclined to think that the sufficiently narrow view is artificially narrow. It seems to devolve either to a potentiality argument (human newborns are potentially duty-holders), or to ignore the central part of the NHRP’s claim, which is precisely that the extent of legal protection afforded to chimps is insufficient. People who think that rights have an important role to play in explaining what law is, and what law should be, are unlikely to be satisfied with the role they’re given in the ratio here.

And as the court notes, the most appropriate way to extend legal protection to chimps is to get the legislature to pass laws establishing those legal protections. Courts are not legislatures with the authority to establish legal protections in general; they can recognize legal protections that already exist, or rule that consistency in their application requires that they be applied in cases where they have not before, or any number of other things. But they can't make them whole cloth. And thus the central part of the NhRP's claim can only be addressed by the court insofar as addressing it makes sense in light of precedent and the overall system of law. The court simply pointed out that precedent and the overall system of law pretty clearly leave no room for the court to act in the way the NhRP takes its claim to establish that they should.

(5) The decision is more or less what a reasonable person would have expected. Brassington ends by saying, "It’s a strange judgement." But in reality what's strange is thinking that a judgment that is more or less what almost every relevant court in the U.S. would have said up to this point, and that pointed out what is clearly the legal issue with trying to do what the NhRP is trying to do through the courts rather than the legislature, is in any way strange. Despite some very optimistic thinking surrounding the NhRP, there was very little expectation in general that the court would act in any other way; there was very little doubt prior to the case about what the basic lines of its reasoning would be. There is also very little doubt that had the court gone the other way, it would have sparked considerable outrage, and possibly backlash in the legislature, as a great many people would have regarded the court as having overstepped the bounds of its authority. None of these tell us whether the result is good or bad in itself; but they do in fact establish that there is nothing strange about it.

There is a truth that will not die,
No matter the tyrant's hold.
There is a flame that lights our way,
No matter the stifling cold.
No matter the shadow of death that falls,
No matter the tiring roads,
A solace awaits for the struggling soul,
Though it kick against the goads.
A starlight shines upon the frost
From a star that masters fate,
Sustaining hope of all who ache,
No matter the weary wait.

Thursday, December 18, 2014

1. Sensation is in us, not in external agents (cf. 632 ss. and 672 ss. [652]). The idealists misused this fact. I grant them its truth, but they should not have neglected other facts while acknowledging it. Their error was the result of insufficient observation, not of defective observation.

2. Sensations are in us as the term of actions done by something other than ourselves (ibid.).

This was the other fact neglected by the idealists, although no less clear than the first. In every sensation we experience a passive modification or disturbance within us, of which we are directly conscious which expresses the term of an external action. By their nature, therefore, sensations, although in us, inform us of something outside ourselves. We must either deny the difference between activity and passivity, or accept that to be conscious of an experience in us is to be conscious of an action done in us, but not by us.

Remember how from wintry dawn till night,
Such songs were sung in Zion, when again
On the high altar flamed the sacred light.
And, purified from every Syrian stain,
The foam-white walls with golden shields were hung.
With crowns and silken spoils, and at the shrine.
Stood, midst their conqueror-tribe. five chieftains sprung
From one heroic stock, one seed divine.

Five branches grown from Mattathias' stem.
The Blessed John, the Keen-Eyed Jonathan,
Simon the fair, the Burst-of-Spring, the Gem,
Eleazar, Help-of-God; o'er all his clan
Judas the Lion-Prince, the Avenging Rod,
Towered in warrior-beauty, uncrowned king,
Armed with the breastplate and the sword of God,
Whose praise is: "He received the perishing."

They who had camped within the mountain-pass,
Couched on the rock, and tented neath the sky,
Who saw from Mizpah'a heights the tangled grass
Choke the wide Temple-courts, the altar lie
Disfigured and polluted — who had flung
Their faces on the stones, and mourned aloud
And rent their garments, wailing with one tongue,
Crushed as a wind-swept bed of reeds is bowed,

Even they by one voice fired, one heart of flame,
Though broken reeds, had risen, and were men,
They rushed upon the spoiler and o'ercame,
Each arm for freedom had the strength of ten.
Now is their mourning into dancing turned,
Their sackcloth doffed for garments of delight,
Week-long the festive torches shall be burned,
Music and revelry wed day with night.

Still ours the dance, the feast, the glorious Psalm,
The mystic lights of emblem, and the Word.
Where is our Judas? Where our five-branched palm?
Where are the lion-warriors of the Lord?
Clash, Israel, the cymbals, touch the lyre,
Sound the brass trumpet and the harsh-tongued horn.
Chant hymns of victory till the heart take fire,
The Maccabean spirit leap new-born!

Wednesday, December 17, 2014

This Advent moon shines cold and clear,
These Advent nights are long;
Our lamps have burned year after year
And still their flame is strong.
'Watchman, what of the night?' we cry,
Heart-sick with hope deferred:
'No speaking signs are in the sky,'
Is still the watchman's word.

The Porter watches at the gate,
The servants watch within;
The watch is long betimes and late,
The prize is slow to win.
'Watchman, what of the night?' But still
His answer sounds the same:
'No daybreak tops the utmost hill,
Nor pale our lamps of flame.'

One to another hear them speak
The patient virgins wise:
'Surely He is not far to seek' –
'All night we watch and rise.'
'The days are evil looking back,
The coming days are dim;
Yet count we not His promise slack,
But watch and wait for Him.'

One with another, soul with soul,
They kindle fire from fire:
'Friends watch us who have touched the goal.'
'They urge us, come up higher.'
'With them shall rest our waysore feet,
With them is built our home,
With Christ.' – 'They sweet, but He most sweet,
Sweeter than honeycomb.'

There no more parting, no more pain,
The distant ones brought near,
The lost so long are found again,
Long lost but longer dear:
Eye hath not seen, ear hath not heard,
Nor heart conceived that rest,
With them our good things long deferred,
With Jesus Christ our Best.

We weep because the night is long,
We laugh for day shall rise,
We sing a slow contented song
And knock at Paradise.
Weeping we hold Him fast Who wept
For us, we hold Him fast;
And will not let Him go except
He bless us first or last.

This is all great discussion; I particularly liked the discussion in (3) of how Aquinas and Hume, despite radically different views of mind, nonetheless share some very basic ideas that are not generally found in contemporary philosophical discussions of mental representation.

* Philip Stratton-Lake on Ethical Intuitionism at the SEP. Sadly, it manages to mention neither Butler nor Whewell despite the fact that Butler is a major factor in the importance of ethical intuitionism in the eighteenth and nineteenth century, and despite the fact that Whewell is one of the most important intuitionists of the nineteenth century; but, admittedly, it is a big subject.

Caveats

For a rough introduction to my philosophy of blogging, including the Code of Amiability I try to follow on this weblog, please read my fifth anniversary post. I consider blogging to be a very informal type of publishing - like putting up thoughts on your door with a note asking for comments. Nothing in this weblog is done rigorously: it's a forum to let my mind be unruly, a place for jottings and first impressions. Because I consider posts here to be 'literary seedings' rather than finished products, nothing here should be taken as if it were anything more than an attempt to rough out some basic thoughts on various issues. Learning to look at any topic philosophically requires, I think, jumping right in, even knowing that you might be making a fool of yourelf; so that's what I do. My primary interest in most topics is the flow and structure of reasoning they involve rather than their actual conclusions, so most of my posts are about that. If, however, you find me making a clear factual error, let me know; blogging is a great way to get rid of misconceptions.